'Is a documentary filmmaker a journalist?' is a question at the heart of the recent legal controversy surrounding Joe Berlinger's Crude.

Media Pulse: A Crude Interpretation of the Law

Jennifer PreisselJuly 1, 2010

The Filmmaker Versus the Court

While British Petroleum may currently occupy the spot of public enemy No. 1, another oil magnate is jockeying for that position within the documentary film community. On May 6th, in a decision that will likely set a precedent redefining a journalist’s protection under the First Amendment, United States District Court judge Lewis A. Kaplan ordered Joe Berlinger—director of DGA-award winner Metallica: Some Kind of Monster—to turn over more than 600 hours of footage he shot to craft his latest documentary, Crude: The Real Price of Oil.

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The film documents the legal case of 30,000 Ecuadoreans charging Texaco, which was absorbed by Chevron in 2001, of committing persistent environmental destruction to the Amazon region. They claim Texaco’s negligence in oil exploration degraded the rain forest and polluted water sources, thus destroying livelihoods and decimating indigenous groups with toxin-related health problems.

In light of BP’s current offenses in the area of oil extraction—which belie an industry-wide trend of lax approaches to maintaining regulatory and environmental standards—the case is especially timely, particularly in that the decision could hinder journalists’ ability to find cooperative witnesses as they attempt to expose the potentially negligent actions of a multinational corporation.

Berlinger’s film documents a case that pits citizens—largely residents of indigenous communities—against a multinational conglomerate; an inexperienced Ecuadorean litigator and American lawyer with moderate resources against a multi-million dollar legal team; civil action lawyers accused of exploiting their own clients against supposed corporate neocolonialists. This is the stuff of high drama; in the film, many of the partisans involved invoke David and Goliath in reference to the case.

But while the film could have devolved into a heart-tugging, rhetoric-laden everyman screed against a corporate villain (Michael Moore, anyone?), Berlinger maintains a critical distance, reporting the facts on the ground. Yes, one could argue his sympathies ultimately lie with the story’s “protagonists” —Educadorean people’s attorney Pablo Fajardo and New York lawyer Steven Donzinger—who receive more screen time and in-depth interviews than their Chevron counterparts. But this is primarily due to the fact that Berlinger had to lobby for months to receive access to interview Chevron Chief Environmental Scientist Sara McMillen and Chevron attorney Ricardo Reis Veiga, who are afforded ample time to argue their case.

The Chevron legal team claims that Crude “was not the result of a newsgathering process, but rather . . . is a piece of theater deliberately designed to win over audiences to the plaintiffs’ side and to facilitate the Lago Agrio Litigation.” But contrary to Chevron’s claim, Berlinger does not shy from revealing moments of questionable character on the part of the plaintiffs’ representation. While on camera, Donzinger, in a candid misstep, urges environmental activist Trudie Styler to smear Texaco by mentioning the company by name in as many interviews with the press as possible. And by offering evidence of the Ecuadorean judiciary’s historical failings and susceptibility to influence, Berlinger leaves unanswered the question of whether a newly elected left-leaning Ecuadorean president intervened in the outcome of an independent investigator’s tests of Texaco’s alleged oil dumping sites.

Is a Documentary Filmmaker a Journalist?

A crux of the case made by Berlinger is his claim that he be considered a journalist, and thus, entitled to the protections of a journalist’s privilege under the law. Some journalism scholars take issue with this classification. “I’m really surprised that the Federal courts blindly accepted documentary filmmakers as journalists,” says John Watson, a professor of communication law and journalism ethics at American University. Watson admits to an “exalted view of journalism‚” and, as a professor of the trade, is ensconced in the academic liturgy of the profession—he is currently prepping a study of whether or not journalists ought to be licensed, like doctors and lawyers. “Documentaries are more like editorials than news reporting. Both should be solidly grounded in fact, but a documentary is less information for the sake of information as opposed to information for the sake of perspective.”

To Simon Kilmurry, executive producer of the documentary series POV, their classification is more amorphous. “I don’t always consider [documentarians] to be journalists,” he says. “That is one role that they can play. But I think the documentary form is pretty broad. A film like Food Inc. is factually accurate all the way through. But it’s definitely a piece that has a perspective and an opinion.” But with regard to Berlinger, Kilmurry’s categorization is unwavering. “What he’s doing is journalism, he’s just presenting it in the documentary form as opposed to classic newspaper form.”

Patrick Creadon, the documentary filmmaker of Wordplay and I.O.U.S.A., who co-penned an open letter issued by the International Documentary Association protesting the ruling, makes the argument that “documentary films are being much more widely seen than they have in the past. You certainly could make the case that they’re doing some of the best investigative journalism around. As we all know, the traditional homes of investigative journalism are not doing it as much as they have in the past.”

In his decision, Judge Kaplan wrote that, "To create Crude, Berlinger investigated the’events and people surrounding’ the Lago Agrio Litigation, a newsworthy event, and disseminated his film to the public,” thus meeting the threshold for the journalist’s privilege. Perhaps the most surprising component of Kaplan’s ruling—that documentary filmmakers are indeed classified as journalists—was the one that seemed the most apparent to the judge himself, as it was the point of contention he felt the least need to justify.

As a testament to Berlinger’s journalistic savoir faire, his film offers scrupulous observation of the American media machine: he showcases journalism’s effectiveness as a means of informing the public, but also how reporting can be manipulated to serve political or corporate ends. As A.O. Scott asserts in his review of the film, “Even as [Crude] presses its muckraking agenda, it does so with a welcome sense of human foible and contradiction. Mr. Fajardo, who worked in the oil fields as a young man, blames Chevron (current owner of Texaco, which opened up his home region to drilling) for many of the ills that have befallen his family and his people. In the course of Crude he becomes something of a star in the Western news and entertainment media, profiled in Vanity Fair, showered with awards and posing for pictures with Sting after a benefit concert.” In the context of the film, Fajardo’s courting of the media, masterfully stage managed by Donzinger, is intended to bring attention to his plaintiffs’ cause. But as a result, traditional journalists are revealed as complicit and culpable in the cultivation of a celebrity aura around one of the case’s major players.

A Journalist’s Privilege

The ultimate basis of Kaplan’s decision resided in two factors: in order to pierce a journalist’s privilege, he had to 1) distinguish whether Berlinger’s sources were non-confidential or confidential and 2) determine whether or not Chevron had enough of a claim that the raw footage was vital to their case.

During the production, Berlinger’s subjects signed agreements permitting him to use their images. Kaplan claimed in his decision that “all of Berlinger’s subjects appeared on camera for the very purpose of having their images and words shown publicly in whatever film Berlinger decided to create. To that extent, there could not possibly have been any understanding of confidentiality, as Berlinger had the uncontrolled right to make public all or any part of the footage that he desired.” Thus, he ruled, that Berlinger had no claim to protect the confidentiality of his sources.

However, the filmmaker asserts in his brief that he “sometimes entered into agreements with his sources, promising that he would not use certain footage without first obtaining their express authorization. Other times, he agreed that the camera be turned off if they became uncomfortable. With respect to this footage, there was an implicit understanding that the moments leading up to the request also would not be included in the film.” He also notes that in a prior trial, over his film Paradise Lost, a judge did not grant a subpoena to a prosecutor and defendant in a capital murder case because Berlinger was “protected from discovery under the journalists’ privilege.”

Kirby Dick, director of documentary exposes Who Killed the Electric Car? and This Film Is Not Yet Rated, contends that his understanding of non-confidentiality aligns with Berlinger’s. “I think he’s absolutely right in making that claim because it’s completely implied in the relationship, that the information is not for public consumption. He’s a steward of that information, because even if it hasn’t been written, it’s been understood.” Dick and other filmmakers consulted for this piece repeatedly cited Woodward and Bernstein as forebears, noting how a precedent set by this ruling would have hindered their ability to engage with confidential sources in order to break the Watergate scandal.

Despite the judge’s claim that the filmmaker’s agreements with his subjects—both on plaintiff’s side and with Chevron’s representatives—exempted him from confidentiality disclosures, Chevron still had the burden to prove that gaining access to Berlinger’s footage was necessary to building their case. Kaplan writes that, “the litigant is entitled to the requested discovery . . . if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.” Chevron’s counsel cites a few scenes captured in the film that they conjecture, should they be permitted to view further outtakes, would support their case. In one such scene, Donzinger “asserts pressure tactics‚” on a local judge; the scene is already available for public consumption on film and DVD and taken out of context would appear to tarnish Donzinger. But does it establish the fact that the outtakes feature Donzinger engaging in nefarious activities? Berlinger charges that such an assumption would be purely speculative.

Chevron’s charge that Berlinger’s footage would support their case is not the first such claim made by a corporation of a documentarian, but rarely has a judge so indulged such a request. What was critical in the subpoena ruling was not the claim that Chevron had no right to Berlinger’s footage; but that the ask was simply unreasonable. It has been established in other cases that, in spite of journalist’s privilege, if a claimant makes a case that a specific interview or a certain piece of footage is warranted in the case at hand, the journalist—even if the confidentiality claim is met—must overturn the materials in question if the judge deems them vital evidence to the case at hand. Professor Stephen D. Solomon, Associate Director of the Arthur L. Carter Journalism Institute at New York University, asserts that Berlinger “does have room to object to this broad order by the judge to turn over everything. That seems pretty radical to me, to tell the journalist to turn over everything he’s got. The judge should require the claimant to specify what it is they’re looking for with some kind of detail.” Chevron cited specific incidents in the film that they found questionable, but offered no reasonable proof that a seizure of the complete 600 hours of Berlinger’s footage was necessary.

After making the Academy Award-nominated Enron: The Smartest Guys in the Room, Alex Gibney was served with a similar subpoena by the counsel for Enron president Jeff Skilling. As in Berlinger’s case, the attorney’s ask was rather broad. But the outcome differed. “His lawyer had sent subpoenas to a lot of people, as if he was using an ocean troller to gather info wherever he could find it,” Gibney recounts. “But the judge took a dim view of that kind of broad overreach.” Skilling’s subpoena was denied.

The Ramifications

Judge Lewis Kaplan writes in his decision that, “the production of the outtakes [would not] compromise Berlinger’s ability to obtain material from sources in confidence . . . The Court does not credit any assertion that the discovery of the outtakes by petitioners would compromise the ability of Berlinger or, for that matter, any other filmmaker, to obtain material from individuals interested in confidential treatment. These subpoenas would impose no undue burden on respondents.”

Why then are documentarians and journalists so incensed by this ruling? If we are to believe Kaplan’s claim, this decision should not affect the ability of filmmakers to induce sources to reveal information that might later incriminate them in a court of law. But take the example of Dick. His recent film Outrage features interviews with several witnesses who recounted stories outing conservative lawmakers who have opposed legislation supporting gay rights. Many of these witnesses did not want their image used on screen. According to Doug Blush, editor of the film, “the thought that perhaps legal action could have exposed [our subjects] would be really distressing, to them and to us. As filmmakers it would put a huge chill on the potential for people to open up and talk about situations that they want to discuss. Subjects would fear repercussions of having their testimony or their footage seized and randomly perused by authorities.” As Creadon says, “This isn’t just the sort of thing that’s going to make a journalist’s job more difficult; it’s the type of thing that is going to make witnesses speak less freely in the future. That’s a real problem. Freedom of speech and freedom of press—both of those things are in jeopardy when you live in a country where judges hand down rulings like this one.”

Mounting a Defense

So what can documentary filmmakers and journalists do to protect themselves? Galvanize their peers. Characteristically, the documentary community’s outcry has been fervent and their campaign has been gaining traction. IDA Board president Eddie Schmidt has committed his organization to advocate on Berlinger’s behalf. “Documentary filmmakers are often working independently,” he notes. “An organization like ours with a thousand members and institutional support‚ we can make a public statement like this, and through the courts, we can petition the copyright office‚” to lobby for journalist’s protections. The open letter issued by the IDA, a call to action signed by over 250 of Berlinger’s colleagues, including Morgan Spurlock, Bill Moyers, Barbara Kopple, D.A. Pennebaker, Gibney and Moore, states, “This case offers a clear and compelling argument for more vigorous federal shield laws to protect journalists and their work, better federal laws to protect confidential sources, and stronger standards to prevent entities from piercing the journalists’ privilege. We urge the higher courts to overturn this ruling to help ensure the safety and protection of journalists and their subjects, and to promote a free and vital press in our nation and around the world.” Many of the letter’s signatories are writing editorials or reaching out to the press to draw attention to the issue. And in a defense of the filmmaker penned for the Huffington Post, none other than Robert Redford—whose Sundance Film Festival has premiered several of Berlinger’s films—made the charged claim that, “If we allow the voice of the independent artist to be stifled we should expect nothing less than extreme repercussions for freedom of information . . . and freedom in general.”

Berlinger, who in initial statements to the press said that he would comply with the subpoena if all legal options were exhausted, is not giving up without a fight. On June 8, a panel of 2nd Circuit United States Court of Appeals judges ruled that the filmmaker will receive a hearing for his appeal in July. And on the Crude web site, the director has issued a call for his supporters to donate to a “First Amendment Fund‚” via Kickstarter.com. As of June 14, 394 people had pledged $25,492 in funds, far exceeding his projected goal of $20,000. It may not seem like much compared to the $27 billion Chevron is trying to keep in its oil-lined pockets over the Lago Agrio case, but it’s a start.

Jennifer Preissel is the Acquisitions Coordinator for The Progress Project at Link TV.